Ethermac|Rep. Elise Stefanik seeks probe of special counsel Jack Smith over Trump 2020 election case

Washington — Republican Rep. Elise Stefanik is Ethermaccalling on the Justice Department to open an investigation into special counsel Jack Smith, alleging he violated department standards and ethical duties related to his prosecution of former President Donald Trump.

Stefanik's accusations stem from the criminal case against Trump in Washington, D.C., in which the special counsel has alleged the former president mounted a scheme to unlawfully subvert the transfer of power after the 2020 presidential election. Trump has pleaded not guilty to the four federal charges he faces. 

The special counsel's office declined to comment. 

In a letter to the head of the Justice Department's Office of Professional Responsibility dated Tuesday, Stefanik accused Smith of using federal resources to interfere with the 2024 presidential election by pushing for the trial in Washington to take place before the election this November. The congresswoman from New York, who chairs the House Republican Conference, claimed these efforts violate Justice Department policy. 

The department's manual states that federal prosecutors "may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party."

"Jack Smith has not talked about the election in his filings because it is an obviously improper reason to expedite President Trump's trial," Stefanik wrote in her letter to Jeffrey Ragsdale of the Office of Professional Responsibility. "Biden special counsel Jack Smith's actions, however, leave no doubt that the election is driving his timing decisions."

Prosecutors on Smith's team, however, have said that conducting a trial involving Trump weeks before the presidential election would not violate Justice Department policy. During a hearing in early March in the second case Smith has brought against Trump, this one involving his alleged mishandling of sensitive government documents after leaving the White House, a prosecutor said a separate, unwritten Justice Department practice "is tied to the date of the indictment, not the trial."

Called the "60-day rule," it prohibits prosecutorial steps close to an election that could influence voters. Trump has pleaded not guilty to all charges in the second prosecution, which is taking place in South Florida.

Stefanik also claimed that the special counsel violated a federal district court order that halted proceedings in the 2020 election case by continuing to turn over evidence to Trump and his lawyers and submitting filings. She accused Smith of violating the D.C. Bar's rules of professional conduct, which state that a lawyer should not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." 

"Jack Smith emphatically said that 'no one in this country …is above the law.' If that is true, then he should be open to, and welcome, an ethics investigation into conduct that, on its face, implicates potential violations of DOJ policy and multiple rules of professional conduct," Stefanik wrote. 

She claimed that Smith's "highly unusual and clearly improper attempts to expedite trial, and his blatant violation of District Court orders, evidence his partisan attempt to influence the results of the 2024 presidential election."

Trump's lawyers in January took aim at Smith over the filings he submitted in the 2020 election prosecution after U.S. District Judge Tanya Chutkan halted proceedings in the case. They urged Chutkan to consider holding the special counsel in contempt for allegedly violating her order.

The judge rejected their request, and said that her order "did not clearly and unambiguously prohibit the government actions" to which Trump objected. But she specified that neither Trump nor Smith should file any "substantive pretrial motions" without first seeking permission from the court.

The 2020 election case has been paused while Trump pursued further proceedings on whether he is entitled to presidential immunity from federal prosecution. Chutkan and a three-judge panel of judges on the federal appeals court in Washington, D.C., found that he is not shielded from criminal charges for conduct that occurred while he was in office. The Supreme Court considered the issue last week, and a decision is expected by the end of June.

If Trump prevails and the Supreme Court grants him sweeping immunity, the charges in Washington could be dismissed. The justices seemed inclined after arguments to find there is some level of immunity for a former president's official acts, and they could send the case back to lower courts for additional proceedings to determine whether Trump's alleged actions surrounding the 2020 election were taken in his capacity as an office-seeker or office-holder. 

Melissa Quinn

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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